BLOG BULLETS: The Ninth Circuit has held the California drug statutes are divisible in both the controlled substance element and the sale/transportation conduct element. The question remains open in other states with overbroad drug statutes, however, because resolution of the question depends on whether state law requires jury unanimity on the element and that will […]

BLOG BULLETS: An Arizona district court attempt to avoid complying with the Ninth Circuit holding that defendants can’t be shackled even in non-jury court proceedings has been rebuffed, at least for the time being, in an emergency appeal by the Arizona Federal Public Defender. Watch for ways courts may try to weasel out of the […]

BLOG BULLETS: The new Attorney General has revoked the Holder memos limiting use of mandatory minimums and gone back to the old “most serious, readily provable offense” standard. There is a caveat in the “Sessions Memo,” also reiterated in a speech he recently gave, implying prosecutors do have some discretion if necessary to avoid a […]

BLOG BULLETS: Defendants are entitled to discovery of software programs the government uses to conduct forensic analysis it uses in its case. Government assurances discovery would be fruitless and not lead anywhere are not a basis for denying such discovery. This case law should also extend to discovery of other sorts of technology the government […]

BLOG BULLETS: The Ninth Circuit sitting en banc recently affirmed a prior panel holding that routine shackling of defendants for non-jury court proceedings is impermissible; there is a presumption defendants should not be shackled, and shackling is permissible only based on an individualized determination that there is a “compelling need” for shackling. The en banc […]

BLOG BULLETS: The Ninth Circuit has recognized that “dual role” testimony, where a cop testifies as both a lay witness and an expert witness raises special problems that a trial court has to guard against. While such testimony is not categorically prohibited, the court does have to take protective measures, such as giving a cautionary […]

BLOG BULLETS: There are bad cases allowing cop “expert” testimony about, inter alia, gang members lying for each other, the value of drugs, quantities of drugs that are typically intended for distribution, drug trafficking organizations not using unknowing couriers, and other types of modus operandi testimony, though remember these cases hold only it wasn’t an […]

BLOG BULLETS: The Ninth Circuit has held a court isn’t absolutely required to hold a pretrial hearing in order to perform its gatekeeping role under Daubert. Still, the court has recognized such a hearing is appropriate in certain cases and acknowledged the difficulties of requiring an attorney to explore the Daubert issues in front of […]

BLOG BULLETS: District courts are required to play the same screening, “gatekeeping” role for non-scientific experts like law enforcement “experts” that courts are required to play for scientific experts. The court isn’t necessarily required to apply the specific factors listed in Daubert for scientific experts, but it can use those factors if it thinks them appropriate […]

BLOG BULLETS: A recent report on forensic science by the (former) President’s Council of Advisors on Science and Technology notes that various developments and studies over the past two decades have raised increasing doubt about the validity and reliability of some important forms of forensic evidence. In addition to pointing out some doubts about forensic […]